Covert medication: Scottish legislation, human rights and the Mental Welfare Commission for Scotland’s updated guidance26
There are indications that the use of covert medication - in other words, medication given to someone without their knowledge or consent, usually in their food or drink - is on the increase in Scotland particularly in relation to individuals with dementia and learning disabilities.27
Non-consensual medical treatment is permissible under Scottish legislation. Subject to certain criteria being fulfilled, Part 5 of the Adults with Incapacity (Scotland) Act 2000 permits such treatment in the case of adults with incapacity28 and Part 16 of the Mental Health (Care and Treatment)(Scotland) Act 2003 authorises it in the case of adults and children who are subject to compulsory measures. However, neither Act specifically refers to covert medication, and the 2000 Act’s accompanying Code of Practice recommends that the Mental Welfare Commission for Scotland’s guidance is followed regarding this. This guidance has just been updated.29
The Mental Welfare Commission does not condemn the use of covert medication in all cases stating that occasionally it may be the best way to provide an individual with necessary medical treatment.30 However, it stresses the need for its use to be considered and administered in accordance with ECHR rights and relevant Scottish legislation which, despite its silence on the subject, does provide a framework which allows for non-consensual treatment that arguably includes administering medication covertly. The provisions of the ECHR and of the Scottish legislation will both be discussed briefly in turn before the key provisions of the guide are considered.
Relevant ECHR considerations
In Scotland, devolved legislation and the actions of the Scottish Government must be ECHR compatible,31 as must as the actions of public authorities.32 The State may also be held responsible for ECHR violations by private individuals or bodies in that it has a positive obligation to protect individuals against such interferences with their rights33 (for example, through registration and inspection for requirements and/or access to the justice system) or where it directly colludes with such violation.34 Indeed, the Scottish Law Commission has commented35 that care and treatment arrangements in Scotland are such that deprivations of liberty in violation of Article 5 are highly likely to be imputable to the state.36 It seems logical, therefore, that this applies to other breaches of ECHR rights.
Whilst specific Strasbourg direction is lacking, certain ECHR rights are particularly relevant - namely the right to life (Article 2), to be free from torture and inhuman or degrading treatment (Article 3), to liberty (Article 5) and to private and family life/autonomy (Article 8) – to covert medication situations.
Firstly, compatibility with Article 8 requires that capacity be assessed on a functional basis37 recognising that capacity can fluctuate. Thus, where an individual is able to give full and informed to treatment this must be sought and refusals of such treatment must normally be respected.
Secondly, Article 8(2) does permit non- consensual medical treatment of incapacitated individuals but only where it is lawful, proportionate and in pursuit of a legitimate aim (in other words, it is therapeutically necessary).38 To inappropriately medicate someone against their will may reach the “minimum level of severity” threshold required to engage Article 339 although whether this threshold is reached depends on whether the treatment is in accordance with “the recognised rules of medical science”40 and on the circumstances of each case.41 Moreover, excessive or unwarranted medication may violate Articles 3 and 842 and the sedative effects of drug treatment could be construed as a deprivation of liberty engaging Article 5. This is reinforced by Articles 17 (right to personal integrity), 15 (freedom from torture, cruel, inhuman or degrading treatment) and 12 (equal treatment before the law) of the UN Convention on the Rights of Persons with Disabilities (CRPD). The UK has international law obligations to ensure that CRPD rights are protected and promoted. In addition, the European Court of Human Rights must take, and has started to take, into account the provisions of this treaty in its jurisprudence.43
Relevant Scottish legislation
Adults with Incapacity (Scotland) Act 2000 (‘the 2000 Act’)
In terms of non-consensual treatment, an adult certified as lacking capacity in terms of the 2000 Act44 can be administered medical treatment provided it is specifically provided for in that certificate.45 This does not permit the use of force or detention in such administration except in the case of emergency and only then for as long as is necessary in the circumstances.46 Certain treatments are, however, subject to additional special safeguards, for instance a second opinion from an independent medical practitioner47 and, as the Mental Welfare Commission points out in its guidance,48 this applies to treatment to reduce sex drive.
Before any intervention under the 2000 Act is permitted, various principles must be taken into account. These include the fact that the intervention must only take place where, to ensure that it is a proportionate measure, it will benefit the adult49 and it is the least restrictive option in the circumstances.50 Moreover, ensuring that the adult’s autonomy is respected, the past and present wishes of the adult and others such as carers, guardians and attorneys and the encouraging of autonomous decision making where possible must be taken into account.51
The 2000 Act may authorise medical treatment for physical or mental conditions. However, if the adult refuses treatment for a mental disorder then it is generally considered to be more appropriate, and protective of their rights, to consider use of the 2003 Act.52
Mental Health (Care and Treatment)(Scotland) Act 2003 (‘the 2003 Act’)
Part 16 of the 2003 Act provides that under certain circumstances an individual may be subjected to non-consensual treatment. One of the criteria for civil compulsory measures being adopted under the Act is that the individual’s ability to take decisions about the treatment is significantly impaired as a result of their mental disorder. The Act does not define this but it is likely that similar factors to those for assessing incapacity in 2000 Act will be taken into account and it must be demonstrated that the person is capable or incapable of making a valid treatment choice in relation to a specific intervention/ treatment. The fact that they may not have had insight about the original treatment does not mean that do not have insight about other interventions.
Where a person is capable of giving consent then they must do so. If they are not, or refuse to give consent, then they can be treated compulsorily under the Act provided its criteria are met.53 During the first two months of compulsion, any drug treatment may be given (provided the registered medical officer gives reasons for this where the individual refuses to consent to it). After the two months then treatment can only be given where either the individual is capable of giving valid consent and does or following an independent second medical opinion has been provided supporting this. It should be noted that drug therapy to reduce sex drive requires an independent second opinion from the beginning of compulsion.
Again, as with the 2000 Act, before functions are discharged under the Act, its principles and certain considerations, which also support proportionality and respect for patient autonomy, must be regarded. In terms of principles, the range of available options should be considered, the least restrictive option, only adopting that which will be of maximum benefit to the individual and non-discrimination, as well as regarding the patient’s wishes, the views of named persons, carers, guardians and attorneys and encouraging patient participation in care and treatment decisions are all statutorily enshrined.54 Moreover, before there can be compulsory measures adopted the presence of mental disorder, treatability, risk, significantly impaired decision making ability about the treatment because of the mental disorder and the necessity for such involuntary treatment must be considered.55
The principles mentioned above apply to person aged 18 years and over but the considerations for compulsory treatment are the same. For children or young persons under 18 years of age then, in addition to these considerations, any functions must be discharged in a “manner that best secures the welfare of the patient.”56
In Scotland, children under the age of 16 years can consent to medical treatment provided they understand what it is and what it involves including the risks involved.57 Responsibility lies with the medical practitioner as to whether this is the case with each individual child. Where a child is unable to give valid consent then those with parental responsibility can make the decision for them although use of the 2003 Act should be considered where treatment is proposed for a mental disorder.
Mental Welfare Commission for Scotland, Covert Medication: A Good Practice Guide
As already mentioned, the Mental Welfare Commission’s guidance is very clear about the importance of adherence to ECHR rights and to provisions and principles of existing legislation when considering the use of covert medication.
The guidance provides a checklist58 – a “Covert Medication Care Pathway” – for situations when covert medication is being considered. It recommends that necessity, capacity, the application of legal principles and procedures (including relevant human rights, particularly Article 8 ECHR), benefit (to the patient), minimum restriction of freedom, the individual’s past and present feelings, consultation of others who may have knowledge of the individual’s preferences (e.g. guardians, attorneys, relatives and friends etc.) and encouraging the individual to use existing skills and develop new skills are all taken into account.59 From a practical and safety perspective it emphasises the need to ensure that the proposed medication can actually be safely disguised without causing harm to the patient, that those administering the medication are fully awareof how to correctly administer it, adequate recording and review of administration of the medication, and the need to assess whether any additional treatment that is required really needs to be covertly administered.60
The guidance also makes it clear that family carers, as well as medical staff and professional carers, must heed the guidance although, admittedly, monitoring the former in this respect presents the greater challenge.
In light of the legislative silence on covert medication the guidance is most welcome. The 2000 and 2003 Acts and obligations imposed upon the State by the ECHR do provide a structure within which the consideration andadministration of medication in this way must operate. However, two matters require additional mention.
The first is the role of advance statements. Notwithstanding that the wishes expressed in these documents may, on occasion, be overridden in psychiatric treatment situations, these should be otherwise respected. Their advantages and importance are undeniable when it comes to individual autonomy and providing a clear expression of a person’s treatment preferences.
Secondly, it seems likely that the guidance may have to be revisited once the full implications of Article 12 CRPD are ascertained in light of current radical interpretations of the Convention that strongly promote supported decision making (and the abolition of guardianship) and of laws providing for the compulsory treatment of mental disorder.61
Dr Jill Stavert is Reader in Law within the School of Accounting, Financial Services and Law at Edinburgh Napier University and Director of its Centre for Mental Health and Incapacity Law Rights and Policy. Jill is also a member of the Law Society for Scotland’s Mental Health and Disability Sub-Committee, Alzheimer Scotland’s Human Rights and Public Policy Committee, the South East Scotland Research Ethics Committee 1, and the Scottish Human Rights Commission Research Advisory Group. She has undertaken work for the Mental Welfare Commission for Scotland (including its 2013 updated guidance on Deprivation of Liberty) and is a voluntary legal officer for the Scottish Association for Mental Health.